Forests and water - case studies

Customary and statutory rights for land use in Nyando basin, Kenya

The Nyando river basin covers an area of 3 500 km2 of western Kenya, and faces some of the most severe problems of agricultural stagnation, environmental degradation and deepening poverty found anywhere in Kenya. The river drains into the Winam gulf of Lake Victoria and is a major contributor of sediment, nitrogen and phosphorus to the lake. The 750 000 people living in the Nyando basin belong to two major language groups: the Luo, who settled in the lower and middle watershed, and the Kalenjin, who live in upstream areas. Resettlement of the large farms in the “white highlands” has led to the coexistence of distinct clusters of Kalenjin and people from other ethnic groups. This was one of the factors that contributed to politically motivated “tribal clashes” in 1992, 1994 and 1997.

Land-use and property rights vary across the basin according to both customary law and statutory entitlements. The Kalenjin upper part of the basin is comprised of gazetted forests, commercial tea plantations and small-scale agriculture plots on steep hillsides that were degazetted as forests over the last 40 years. Mid-altitude areas are a mixture of smallholder farms (with maize, beans and some coffee, bananas, sweet potatoes and dairy) and large-scale commercial farms (mostly sugar cane). The Luo flood-prone lakeshore area is used mainly for subsistence production of maize, beans and sorghum, combined with commercial production of sugar cane and irrigated rice. Smallholder farmers and the National Irrigation Board own the downstream irrigated areas.

Land and water in the Nyando basin are held under a surprisingly wide variety of statutory property right arrangements. There are at least six types of private tenure, including three types of private tenure on former crown land - large agricultural leaseholds (former white-owned farms), subdivided agricultural leaseholds, and non-agricultural leaseholds - and four types of private tenure on trust land - freehold land in adjudication areas, freehold land in settlement schemes, non-agricultural leaseholds, and group ranches.

Land degradation problems appear to be most severe in subdivided agricultural leaseholds and freehold land in adjudication areas. In the former, problems are associated with poor land-use planning during the transition from large to small farms in the 1960s and early 1970s. The companies that purchased the land on behalf of groups of shareholders did not consider its productive capacity, the terrain or the need for public utilities. Moreover, the companies were formed along ethnic lines, creating clusters of different cultures living next to each other on the same landscape. This had the effect of weakening traditional systems, and people in these areas now find statutory laws more functional. A contrasting situation arose in the areas that were designated as Luo reservations in the colonial era. Natural growth in the populations of these reserves has led to high population pressure and overuse of all land resources.

In addition to private property right arrangements, there are also at least five types of public land in the Nyando basin. In both government land and trust land areas, some land is not alienated to any specific user. This type of public land is very vulnerable and subject to abuse because it is often de facto open access land. In addition, many very important areas for catchment management have been formally designated as private property. These areas include spring heads and the catchment areas immediately around them, riparian areas, some wetlands, and water harvesting structures.

The complex land tenure system in the Nyando basin creates many problems for watershed management. High rates of erosion in the lower part of the basin are associated with the overuse of private uncultivated areas for grazing and wood collection. High rates of erosion in the upper part of the basin appear to be associated more with the private allocation and farming of steep hillsides. Gulley formation and low-quality water in the mid-altitude areas are associated with springs that are used commonly, but are located on private land. Deforestation and cultivation of riparian areas are associated with the privatization of riverine areas, together with ineffective enforcement of rules on the use of these areas. Lack of public infrastructure for water management is partially associated with the lack of public or collective land on which to locate water storage structures.